Simplified rules of federal procedure?

Michigan Law Review

Volumn 100, Issue 7, 2002, Pages 1794-1800

  Cooper, Edward H ^a  

^a NONE

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[No Author keywords available]

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EID: 0042871278     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1556076     Document Type: Article

References (10)

1. Edson R. Sunderland, The Machinery of Procedural Reform, 22 MICH. L. REV. 293 (1924).
2. The core of the current version is 28 U.S.C. § 2072 (1994). The full scope of the enterprise is reflected in 28 U.S.C. §§ 331, 2071-77. Section 331 directs the Judicial Conference of the United States to: carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court ** *.
3. A succinct summary of the creation of the Civil Rules is provided in 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE: CIVIL § 1004 (2d ed. 1987). The original Advisory Committee - of which Professor Sunderland was a member - was appointed on June 3, 1935. The Committee submitted its third draft to the Supreme Court in May 1936. The final report issued in November 1937. After submission to Congress, the rules took effect on September 16, 1938. Current consideration of Rule 23, the class-action rule, has been rather more deliberate. After a deliberate moratorium following the 1966 amendments, the Advisory Committee took the subject up again in 1991. An interim memorial of the project is provided by the four-volume ADMIN. OFF. OF THE U.S. CTS., WORKING PAPERS OF THE ADVISORY COMMITTEE ON CIVIL RULES ON PROPOSED AMENDMENTS TO CIVIL RULE 23 (1997). A related undertaking is reflected in ADVISORY COMM. ON CIVIL RULES & WORKING GROUP ON MASS TORTS, REPORT ON MASS TORT LITIGATION (Feb. 15, 1999). The only amendment yet to be adopted was the addition of a new Rule 23(f), effective on December 1, 1998, establishing a system for permissive interlocutory appeals from orders granting or denying class certification. The continuing work is reflected in proposed amendments to Rule 23 and 23(f) published for comment in August 2001. See 201 F.R.D. 586. The amendments also are available at http://www.uscourts.gov/rules. Still further amendments remain under consideration. This is not the work pace of the original rulemakers.
4. Sunderland, supra note 1, at 298.
5. Discussion Draft No. 2 of this project was circulated for discussion and comment on April 12, 2001. The basic purpose is to draft a set of procedure rules for transnational disputes, based on the common principles that underlie both "common" and "civil" law systems, as well as other legal systems that do not derive from either of those great traditions. The hope is that the rules could be adopted in many countries, providing a good procedure that is comfortingly familiar to litigants from many different systems. Even as the project remains in midstream, it is apparent that it requires simplification, a stripping away of details to reveal a basic core procedure that is significantly different from any particular domestic system.
6. Letter from Thomas E. Willging to Hon. Paul V. Niemeyer, Chair, Civil Rules Advisory Committee (Dec. 21, 1999) (on file with author).
7. See THOMAS E. WILLGING ET AL., DISCOVERY AND DISCLOSURE PRACTICE, PROBLEMS, AND PROPOSALS FOR CHANGE (1997).
8. Information about differentiated case management plans remains diffuse. Two good sources provide information about general variations; although the details of specific court programs have surely changed, the overall picture remains useful. See DAVID RAUMA & DONNA STIENSTRA, THE CIVIL JUSTICE REFORM ACT EXPENSE AND DELAY REDUCTION PLANS: A SOURCEBOOK (1995): DONNA STIENSTRA ET AL., REPORT TO THE JUDICIAL CONFERENCE COMMITTEE ON COURT ADMINISTRATION AND CASE MANAGEMENT: A STUDY OF THE FIVE DEMONSTRATION PROGRAMS ESTABLISHED UNDER THE CIVIL JUSTICE REFORM ACT OF 1990 (1997). A summary of Judge Jean C. Hamilton's description of the expedited track in the Eastern District of Missouri plan is provided in the Civil Rules Advisory Committee, Minutes (Oct. 16-17, 2000), available at http://www.uscourts.gov/rules.
9. Information about differentiated case management plans remains diffuse. Two good sources provide information about general variations; although the details of specific court programs have surely changed, the overall picture remains useful. See DAVID RAUMA & DONNA STIENSTRA, THE CIVIL JUSTICE REFORM ACT EXPENSE AND DELAY REDUCTION PLANS: A SOURCEBOOK (1995): DONNA STIENSTRA ET AL., REPORT TO THE JUDICIAL CONFERENCE COMMITTEE ON COURT ADMINISTRATION AND CASE MANAGEMENT: A STUDY OF THE FIVE DEMONSTRATION PROGRAMS ESTABLISHED UNDER THE CIVIL JUSTICE REFORM ACT OF 1990 (1997). A summary of Judge Jean C. Hamilton's description of the expedited track in the Eastern District of Missouri plan is provided in the Civil Rules Advisory Committee, Minutes (Oct. 16-17, 2000), available at http://www.uscourts.gov/rules.
10. A concise history of the discovery rules is provided in 8 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE: CIVIL §§ 2002-2003.1 (2d. ed. 1994).